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Assault and Battery: Physical

     A man stood outside his residence one evening, waiting for his girlfriend. His aunt, who also lived there, was informed by her son that the police were outside "harassing" her nephew. She went outside and observed officers arresting her nephew, and placing him in the backseat of a police car. Officers subsequently released her nephew, but the arresting officer allegedly swung something at him as he was walking away. The aunt then attempted to hold him in a bear hug to protect him from the officer, who was preparing to taser him. Another officer then pulled her off her nephew, and allegedly threw her to the ground. Her nephew was tasered and she attempted twice more to intervene. She was sprayed with mace and arrested. Rejecting claims in her excessive force lawsuit, the court found that her repeated interference with the arrest endangered the officers and herself. The officers' use of force against her was reasonable. The court ruled that a bystander to an arrest does not have standing to challenge its legality, and that there is also no right to resist an unlawful arrest or search. Further, while a person being subjected to excessive force by an officer has a personal right to resist, that right does not extend to a third party intervening in the incident Johnson v. Carroll, #08-CV-6427, 2010 WL 3023407 (D. Minn. July 29, 2010).

     An 83-year-old woman and her adult disabled son visited a store. The son scratched his arm on a fire hose on the premises, and store employees asked him to fill out some forms regarding the incident. A dispute occurred as to whether the son and his mother could have copies of the forms, and a store manager felt threatened by the son, who allegedly made a gesture and then was asked to step back. The store summoned police for help, indicating that the woman and her son were being disruptive. An officer arrived, listened to both sides of the dispute, and then told the woman she would have to leave at the manager's request or face arrest. When the officer attempted to escort her to the door, she became agitated when he touched her elbow, and began flailing her arms. She then left, and was not arrested. She later filed an excessive force claim against the officer, and a failure to train claim against the city. Upholding a judgment in favor of the officer and city, a federal appeals court noted that "mere physical contact" by an officer does not necessarily constitute a seizure for Fourth Amendment purposes, and the jury was entitled to believe, based on the evidence, that the officer's touching of the woman's arm was more "exhortatory" than "commanding." Carlson v. Bukovic, #09-2578, 2010 U.S. App. Lexis 18383 (7th Cir.).

     An officer who arrested a tavern owner was not entitled to qualified immunity on his claim that the officer used excessive force during his arrest. The tavern owner became involved in an argument and fight with friends at his tavern. The officer claimed that the tavern owner poked him several times, while the tavern owner denied this. The officer took the plaintiff to the ground with a leg sweep, and handcuffed him. The plaintiff denied being uncooperative, as the officer claimed. If the facts were as the tavern owner claimed, the officer used excessive force. Shannon v. Koehler, #09-3889, 2010 U.S. App. Lexis 17123(8th Cir.).

Dogs

     Police searched for a 13-year-old boy who wandered off and got lost after getting drunk at a party. The boy was last seen lightly clad in the cold night sleeping under a bush by a couple who called 911. Officers were unable to find the boy until an officer brought a patrol dog that found the boy under a bush, but who also bit his leg. The boy's father sued the officer for excessive use of force. A federal appeals court found that the dog bite constituted a seizure. It also stated that the officer might have violated the boy's rights by failing to muzzle the dog, but that it was also possible that the dog may have been unable to pick up the boy's scent if muzzled. In light of that, and the fact that finding the boy may well have saved his life, the court concluded that the officer was entitled to qualified immunity from liability. Melgar v. Greene, #08-2393, 593 F.3d 348 (4th Cir. 2010).

Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence

     A man was arrested, prosecuted, and convicted of having raped and murdered his mother-in-law, and raped and assaulted his six-year old niece. He was sentenced to life without patrol and exonerated when DNA evidence showed that his neighbor had actually committed the crime. Officers were not entitled to qualified immunity on the plaintiff's claim that they failed to disclose to his defense exculpatory evidence contained in a memorandum written by an officer who arrested the neighbor, while he was intoxicated, on unrelated charges, only to have the neighbor ask why he wasn't being charged with the mother-in-law's murder. Elkins v. Summit County, #09-3680, 2010 U.S. App. Lexis 16471 (6th Cir.).

False Arrest/Imprisonment: No Warrant

     An off-duty officer investigating a dog in distress in a hot, parked vehicle observed the driver, a woman emerging from a nearby store, and he questioned her. She got into the driver's side of the car and the officer displayed his badge, at which point she attempted to drive away. The officer pulled her from the car and restrained her following a struggle. A second officer summoned to the scene observed that the off-duty officer had the woman restrained against her vehicle in an arm lock. The off-duty officer told the arriving officer that the woman was under arrest. The second officer, at the off-duty officer's request drove the woman, in handcuffs, to the police station for processing. Charges of animal cruelty, aggravated assault, and obstruction were later dismissed. The arrestee sued both officers for false arrest and other claims. The trial court found that factual disputes on the conduct of the arrestee and the arresting off-duty officer precluded summary judgment on most claims arising from the arrest. An appeal focused on the issue of whether the second, arriving officer was entitled to qualified immunity. The trial court ruled that the facts were not sufficient to find that this officer had probable cause to arrest the woman, which would entitle him to qualified immunity. There were factual disputes as to what the off-duty officer told him, the existence of an "assist officer" call bringing him to the scene was in dispute, and the trial court found that the second officer could not have directly observed conduct that would have given him probable cause to arrest the plaintiff, since the events causing the arrest had already occurred by the time he arrived. The appeals court stated in order for the second officer to rely on the first officer's statements for the purposes of an arrest, they must be "clear" and sufficiently specific to "confirm the existence of probable cause." Since the trial court found that undisputed facts in the record did not establish this, the second officer was not entitled to qualified immunity. Ciardiello v. Sexton, #08-4610, 2010 U.S. App. Lexis 17106 (Unpub. 3rd Cir. 2010).

     A 19-year-old cashier at a convenience store was sexually assaulted and robbed at gunpoint by a serial sex offender, and reported the crime to police within minutes, subjecting herself to a rape kit examination, and gave detailed and consistent statements to police and hospital personnel. Despite this, a detective assigned to the case believed that she had fabricated the attack to cover up her own theft of cash from the store's cash register. He later filed a criminal complaint against her, charging her with falsely reporting a crime, theft, and receipt of stolen property, resulting in her spending five days in jail. Charges against her were dropped when the serial rapist was caught and confessed to having assaulted her. She sued the detective and another officer for violation of her Fourth Amendment rights and false arrest. Overturning summary judgment for the defendant detective, a federal appeals court held that no reasonably competent officer could have believed under the circumstances that there was probable cause for the plaintiff's arrest, if the plaintiff's version of the facts were believed. Reedy v. Evanson, #09-2210, 2010 U.S. App. Lexis 15974 (3rd Cir.).

     A federal court rejected false arrest claims asserted by a woman arrested by two officers following an incident at a store involving counterfeit money orders. The trial court, in addition to entering summary judgment for the defendants, awarded the officers attorneys' fees, believing that the arrestee's claims against them were groundless and unreasonable. The plaintiff had received four $500 money orders in the mail from someone she did not know, and suspected that they were fraudulent. She went to a store to cash a legitimate $100 money order she had also received, and decided to check into the validity of the four suspicious money orders. She claimed that she did not intend to try to cash them, but only to determine if they were real. These four money orders were recognized by a store employee as likely to be fraudulent, and he summoned store security, which confiscated them. The officers later arrested her for trying to cash them. A federal appeals court ruled that the officers, under these circumstances, had probable cause to arrest the plaintiff. The court also upheld the award of attorneys' fees, as the plaintiff's continuation of her lawsuit against the officers after she completed discovery was "unquestionably" groundless and unreasonable. Fisher v. Wal-Mart Stores, Inc., #09-2696, 2010 U.S. App. Lexis 18239 (8th Cir.).

     A police officer clearly had arguable probable cause, based on the facts, to arrest a man he encountered for a violation of the town's public consumption of alcohol ordinance. The U.S. Supreme Court has held that "[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, #99-1408, 532 U.S. 318 (2001). The trial court therefore erred in not granting the officer summary judgment on the false arrest claim. Disputed facts about the force used during the arrest, however, required the denial of the officer's motion for summary judgment on an excessive force claim. Ruiz v. Town of Indian Shores, #09-15316, 2010 U.S. App. Lexis 15891 (Unpub. 11th Cir.).

False Arrest/Imprisonment: Unlawful Detention

     During a child welfare check at the home of a man and his girlfriend, a confrontation occurred that resulted in the officers pulling their weapons on the couple, ordering them from the home, and then leaving them handcuffed on the front sidewalk while the officers searched inside. The officers went to the home because they received a call from a neighbor suggesting a woman there was beating a toddler and putting him outside the house in the rain, telling him that he would stay there until he shut up. The couple told the officers that there was no child at the home. No child was found there. The couple sued the police for violation of their civil rights, and the trial court granted the officers qualified immunity. A federal appeals court reversed, as the plaintiffs alleged facts which, if true, indicated that the officers, while they may have had grounds for a brief investigatory detention, could not, acting in an objectively reasonable manner, prolong the detention and search the home. Lundstrom v. Romero, #08-2254, 2010 U.S. App. Lexis 17136 (10th Cir.).

Firearms Related: Intentional Use

****Editor's Case Alert****

     Officers did not use excessive force in shooting a suspect after he fled the scene of a violent crime, a burglary involving a gun. Either the suspect or his accomplice shot at the deputies at close range when they responded to a call reporting the burglary. Both burglars fled the scene of the crime. A federal appeals court upheld the trial court's determination that no Fourth Amendment seizure of the plaintiff occurred, as the officers did not gain "intentional acquisition of physical control," as he continued to flee, so that their actions did not cause the officers to terminate his movement. The mere show of authority alone, or use of physical force, without termination of movement, or a suspect's submission, is not a seizure, even if the plaintiff was struck by a bullet. The suspect was only apprehended three days later. Brooks v. Gaenzle, #09-1489, 2010 U.S. App. Lexis 16488 (10th Cir.).

     Officers responded to a 911 call for assistance, going to the home of a couple whose depressed son had locked himself inside, refusing to allow them to enter. Officers spoke to the son, trying to get him to come out, but he refused to either do so or let them in. Officers decided to forcibly enter the home, although the son was not a suspect in any criminal investigation and he had not threatened either the officers or himself. The son allegedly had a hammer and charged at officers when they entered, and he was shot and killed. His parents sued the city, claiming that the officers used excessive force in entering the home and shooting their son, and that the city had failed to properly train the officers. A federal appeals court ruled that, while the decision to enter the home may have been the "moving force" behind the shooting, the decision was not made by a final policymaker for the city, so there could be no municipal liability. The plaintiffs also failed to show that inadequate training caused their son's death. Valle v. Houston, #09-20624, 2010 U.S. App. Lexis 15776 (5th Cir.).

     A 15-year-old boy in Florida had modified his plastic air pistol to look like a real gun. He brought it to school, brandishing it to briefly hold a classmate hostage, and then went into a bathroom. When deputies arrived, the boy walked back and forth in the bathroom, pointing the plastic air pistol alternately at the deputies and at his own chin. A sergeant started negotiating with the boy, but while he did so, a lieutenant shot the boy in the head and killed him. The officers were entitled to qualified immunity in the federal civil rights and wrongful death lawsuit brought by the boy's parents. The officers reasonably believed that the boy posed a real threat to the lives of themselves and others in the school and that he was armed with a real weapon. The boy also repeatedly refused to drop the pistol and there was evidence that he was pointing it at the lieutenant at the time he was shot. Penley v. Eslinger, #09-13092, 2010 U.S. App. Lexis 9106 (11th Cir.).

     A suspect in a double homicide was allegedly unarmed when he was shot and killed by police. A witness indicated that she saw an officer fire multiple times at the suspect at a time when his hands were at his sides and he had stopped running away. A sergeant admitted to having shot the suspect in the back of the head after he had already been shot twice and was being subdued by other officers while lying on the ground. The defendant officers, however, claimed that the suspect, while on the ground, was pressing his arm up against the inside of his shirt and that they feared that he was doing this to aim a gun. A federal appeals court ruled that the defendants were not entitled to qualified immunity, since a jury could find that the decedent posed no immediate threat to the officers and that they used excessive force against him. Sanchez v. Fraley, #09-50821, 2010 U.S. App. Lexis 9046 (Unpub. 5th Cir.).

First Amendment

     Two persons were arrested for disorderly conducted while they handed out anti-war leaflets near a military recruiting booth at a festival in downtown Chicago when they allegedly did not obey a police order to disperse. They reached a settlement with the city on false arrest claims and then challenged the city's disorderly conduct ordinance, claiming that it violated their First and Fourth Amendment rights. The trial court enjoined the enforcement of the failure to disperse provision of the ordinance, ruling that it imposed an harsh burden on protected free speech and was unconstitutionally vague. A federal appeals court vacated the injunction, finding that the plaintiffs did not have standing to challenge the validity of the ordinance on its face. The failure to disperse provision of the disorderly conduct ordinance was "not even arguably" violated by their demonstration against military recruiting, as it was designed to be applied to plainly disorderly and criminal conduct, such as throwing things at police. The plaintiffs also could not show they faced a reasonable possibility of being arrested in the future for violating the same provision of the ordinance. They also could not establish that there was a pattern of the ordinance being used to stifle free speech. Goldhamer v. Nagode, #09-2332, 2010 U.S. App. Lexis 18325 (7th Cir.).

     In a lawsuit challenging National Park Service regulations making it unlawful to engage in "expressive" activities in any of the 301 national parks without a permit issued by a park official, the defendant was not entitled to summary judgment. The regulations in their current form violated "core First Amendment" principles as such restrictions on speech in a public forum like the parks are only lawful if "narrowly tailored" to serve legitimate governmental interests. The plaintiff and his associates wanted to distribute free tracts discussing the "Gospel of Jesus Christ" in a free speech area of Mount Rushmore but they were stopped by a park ranger because they lacked a permit. He requested a permit later by phone, but never received a permit or even an application. "Requiring individuals and small groups to obtain permits before engaging in expressive activities within designated “free speech areas” (and other public forums within national parks) violates the First Amendment." Boardley v. U.S. Dep't of the Interior, #09-5176, 2010 U.S. App. Lexis 16302 (D.C. Cir.).

     A student was subjected to a ten-day suspension from school after he wrote a slogan on the back of his hands supporting a former student who was accused of shooting a police officer. The student sued, seeking a judicial declaration that the school's actions violated his First Amendment rights, and the expungement of his suspension, as well as damages and attorneys' fees. A federal court rejected this claim. Even if the student acted in a peaceful and passive manner in displaying the slogan, his actions took place within a context of hostility and intimidation. School authorities could reasonably believe that his actions might contribute to disturbances already going on because of gang activity and the same slogan, even if no individual had felt threatened by his actions. Allowing the student to display the slogan might have increased the fear and tension already expressed by some students and parents over the slogan, so the school could properly prohibit its display. Brown v. Cabell County Board of Education, #3:09-0279, 2010 U.S. Dist. Lexis 53200 (S.D.W.Va.).

Immigrants and Immigration Issues

     Ruling in a lawsuit filed by the federal government against the state of Arizona and its governor, a federal judge enjoined the enforcement of a number of controversial provisions of a new state immigration law, S.B.1070, including a requirement that police officers check the immigration status of anyone reasonably suspected of being in the U.S. illegally. The federal government focused on the argument that the enforcement of immigration law is its job and that the Arizona law is therefore preempted by federal law. Other critics of the Arizona law have argued that it will lead to "racial profiling." Other lawsuits are also pending challenging the statute. U.S.A. v. State of Arizona, #CV-10-1413, U.S. Dist. Ct. (D. Ariz. July 28, 2010).

     A woman from China and her husband sued the federal government and a number of officials under the Federal Tort Claims Act, asserting that an asylum officer demanded sexual favors from her in return for assisting with her asylum application. He had the authority to grant her asylum request, eliminating the need for a formal hearing on it. When she refused to allow him to allegedly unzip and remove her pants, he denied her application A federal appeals court upheld the dismissal of the lawsuit in part, as the plaintiff failed to establish that there was a specific duty violated under the Fifth Amendment or any evidence that could establish the existence of an unconstitutional policy. It did, however, reinstate an emotional distress claim, and stated that emotional distress suffered from such a request for sexual favors could potentially be proven and constitute an injury separate and apart from battery. The U.S. government is immune under the Federal Tort Claims Act from claims for battery committed by its employees.. Lu v. Powell, #08-56421, 2010 U.S. App. Lexis 18368 (9th Cir.).

Negligence: Vehicle Related

      A deputy was driving his patrol vehicle on a rural road while on duty at night. He lost control of his vehicle, crossed the center line, and smashed head-on into an oncoming vehicle driven by a female motorist, who died of her injuries. He was traveling at 88 miles per hour at the time, well in excess of the speed limit, and did not have his emergency lights or sirens activated. He subsequently claimed that he was responding to a dispatch call about a vehicle fleeing the scene of a suspected armed robbery. The plaintiff in a lawsuit against the county based on the death of the motorist argued that it was "unlikely" that he was, in fact, responding to that call, because the robbers were far away and outside of his patrol area, and other officers were closer. The federal appeals court rejected any federal civil rights claim based on the accident, since the officer's actions, even if negligent, did not violate any constitutional right. The lawsuit also included state law negligence claims, but they were not addressed in the appeal. Barnwell v. Douglas County, #09-14574, 2010 U.S. App. Lexis 15892 (Unpub. 11th Cir.).

Public Protection: 911 Phone Systems

****Editor's Case Alert****

    Two officers responded to a 911 call indicating that a man was having a seizure in his home. Finding the man in his bedroom, the officers allegedly told him to get dressed, which he started to do, but then he started to lie down again, and the officers allegedly picked him up by his hands, pulled him up from the ground, and told him to put his pants on. They ultimately handcuffed his wrists and ankles and the man began actively struggling with them. The officers, however, claimed that the man was unresponsive to verbal questioning, that one of them put a hand on his arm or shoulder to try to rouse him, and that he then did rouse, becoming aggressive and violent, pushing them and causing one officer to fall backwards, making it necessary to handcuff him. Firefighters then arrived as the officers were restraining him, and together with emergency medical personnel removed him on a stretcher. In a lawsuit against the officers for violation of the man's Fourth Amendment rights, a jury awarded him $6,000 for medical bills, and $275,00 for pain and suffering, but the trial court reduced the pain and suffering award to $10,000. A federal appeals court upheld this result, finding that the jury could reasonably have found that the officer acted in an "objectively law-enforcement rather than medical-response capacity," and unreasonably searched the house for drugs and seized the plaintiff. McKenna v. Honsowetz, #08-2080, 2010 U.S. App. Lexis 17114 (6th Cir.).

Pursuit: Law Enforcement

     An officer in Delaware engaged in a high-speed chase of carjackers that ended when the suspects struck and killed another motorist after going through a red light. In a lawsuit against the city and police department, as well as the officer, by the deceased motorist's estate, the Supreme Court of Delaware reversed summary judgment for the defendants. It found that a reasonable juror, based on the alleged facts, could have found that the pursuing officer had been grossly negligent in beginning, conducting, or terminating the pursuit, and had caused the motorists' death. The court found that it could not hold, as a matter of law, that under no circumstances could a jury have found the defendants liable. Jones v. Crawford, #481, 2009, 2010 Del. Lexis 359.

Search and Seizure: Home/Business

     Two officers went to a home after a 911 hang-up call was received from there. They entered the home, seeing that the front door was wide open, concerned that someone might be hurt or in need of assistance. They first announced their presence and entered after receiving no response. At one point, they encountered a man, who did not answer their question about why he had not responded to their calls. Instead, he jumped on one officer, and a fight began. The man grabbed one officer's gun hand, and that officer yelled to the second officer that the man was going for his gun. The second officer shouted repeatedly at the man to get down, and then fired at him. The man then charged this officer and hit him with enough force to briefly knock him out. The man then died from being shot. He was bipolar, and off his medication, and his wife called 911 and hung up, and then called a second time, telling the dispatcher of the medical situation, but this information never reached the officers. In a lawsuit by the wife against the city, the court ruled that the defendant was entitled to summary judgment. The officers' warrantless entry into the home was justified by exigent circumstances. Johnson v. City of Memphis, 09-5046, 2010 U.S. App. Lexis 17658 (6th Cir.).

     A gunshop owner was training a customer to use a handgun when the customer intentionally shot himself in the head to commit suicide. A police investigation concluded that the store owner was not at fault for the suicide, but the police chief still suspended the store owner's firearms license, pending further investigation. The police department contacted ATF to request that they inspect the store, and an ATF inspector arrived to do that. During the inspection, he allegedly found several violations of federal firearms regulations, such as sales without completing required forms, and failure to update records to account for several firearms. The store's federal license was suspended and its state license was first suspended and then revoked. The owner sued the ATF agent, claiming that the inspection, and his seizure of his federal license and several gun frames lacking serial numbers violated his rights. A federal appeals court found that the ATF agent was entitled to qualified immunity. The court rejected the argument that the inspection was not legitimate because the agent was acting at the behest of the local police department. The statute allowing for ATF inspections of gun shops does not prevent the ATF from doing so at the request of local police. Giragosian v. Bettencourt, #09-2001, 2010 U.S. App. Lexis 15670 (1st Cir.).

 Search and Seizure: Search Warrant

     A federal appeals court found that officers who executed a search warrant on a residence were not entitled to qualified immunity from unreasonable search and seizure claims by the residents, as portions of the warrant were “so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Among other things, the warrant authorized a search and seizure of all firearms, firearms-related materials, and "gang-related materials," which was found to be unconstitutionally overbroad, in violation of the Fourth Amendment's specificity requirement for search warrants. Millender v. County of L.A., #07-55518, 2010 U.S. App. Lexis 17673 (9th Cir.).

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     Drug Abuse: The "Arrestee Drug Abuse Monitoring Program II (ADAM) 2009 Annual Report" (NCJ 230756, 182 pp.) documents and analyzes the 2009 data that were collected for the program. Since 2000, ADAM and ADAM II have served as an important source of information on the basic characteristics, drug use, and drug market participation of arrestees, a population often more heavily involved in drugs than other groups surveyed. (ONDCP).

     Immigration: "The Performance of 287(g) Agreements," Department of Homeland Security Office of the Inspector General (April 2, 2010). Addresses the performance of 287(g) agreements between Immigration and Customs Enforcement (ICE) and state and local law enforcement agencies, involving the delegation of federal immigration enforcement authority to state and local agencies.

     Search and Seizure: "Let's Be Reasonable: Fourth Amendment Principles in the Digital Age," by Scott D. Blake, 5 Seventh Circuit Rev. 491 (2010). Abstract: The expansion of computers in American society has led to new developments in Fourth Amendment doctrine. Just like every other American, criminals use computers, which requires law enforcement to search and seize computers. Frequently, an executing officer inadvertently discovers computer files with illegal content that are outside the scope of the original warrant. Reasoning that traditional Fourth Amendment doctrine does not provide sufficient protection in a digital age, two federal circuits have crafted alternative approaches that deviate from it. However, the Seventh Circuit, in United States v. Mann, has continued to apply the traditional principles of Fourth Amendment doctrine by reasoning that the plain view doctrine, the particularity requirement, and a reasonableness standard should be allowed to evolve and expand into the world of digital evidence.

     • Abbreviations of Law Reports, laws and agencies used in our publications.

     • AELE's list of recently-noted civil liability law resources.